CORRECTED COPY: AUSTRALIAN IMMIGRATION LAWS CONTINUE TO BE

UNCLAS SECTION 01 OF 02 CANBERRA 000588 SENSITIVE SIPDIS C O R R E C T E D C O P Y (SENSITIVE CAPTION ADDED) E.O. 12958: N/A TAGS: PGOV PREL PHUM AS SUBJECT: CORRECTED COPY: AUSTRALIAN IMMIGRATION LAWS CONTINUE TO BE SOFTENED REF: A. 08 CANBERRA 1324 ¶B. 07 CANBERRA 1148 ¶C. 07 CANBERRA 1143 CANBERRA 00000588 001.4 OF 002 ¶1. (U) SUMMARY: The Australian government has restricted the ability of the Immigration Minister and his department to cancel visas on character grounds, continuing the Rudd government's softening of immigration laws. This has been welcomed by human rights advocates, particularly in the context of the Mohammed Haneef case in 2007 (reftels) END SUMMARY. THE VISA ¶2. (U) Under Section 501 of the Migration Act, the Immigration Minister or his department may cancel a visa on "character grounds". Grounds upon which a visa can be cancelled include: substantial criminal record; association with criminal conduct; general conduct; and risk of future conduct grounds. The previous Howard government came under fire for what some saw as indiscriminate application of the law, resulting in deportation of some long-term permanent residents. One high profile case was Robert Jovicic who was deported to Serbia in June 2004 despite never having lived there, and having resided in Australia over 30 years. The Ombudsman and Human Rights Commission have been critics of deportations of this kind. THE CHANGES ¶3. (U) According to recent press reports, Immigration Minister Chris Evans has issued a directive narrowing the grounds under which a visa can be cancelled. For example, association with a criminal is no longer sufficient grounds for cancellation. This has been welcomed by human rights advocates, particularly in the context of the Mohamed Haneef case in 2007. Haneef's visa was stripped by the Immigration Minister soon after he was released on bail in relation to terrorism charges (the charges were later dropped). The Minister cancelled the visa on the basis of an on line communication between Haneef and his second cousin. TEXT of the Immigration Minister's announcement follows in Para 4. ¶4. (BEGIN TEXT) The Government takes very seriously its role in protecting the Australian community from harm caused by non-citizens who want to come to Australia, or who might already be here. There are strong provisions in the Migration Act that allow decision makers to refuse a visa application, or to cancel a visa, where a person is found to be not of good character. The new Ministerial Direction provides clear and current guidance to decision-makers on how to use these important powers. The role of section 501 is to protect the Australian community from unacceptable risk of harm from criminal or other serious conduct. The new Direction requires decision makers to assess the risk of harm that the person presents to the community, including individuals. The new Direction gives guidance to decision-makers on interpretation of the concept of 'association' under section 501 of the Migration Act. This term in section 501 relates to people who fail the character test because of their association with a person, group or organisation involved in criminal activity. Guidance on 'association' incorporated into the new Direction reflects Australian caselaw (specifically - the Haneef case). This guidance has made it clear that, for the purposes of a section 501 'association' case, an assessment of whether the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation is required;- mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association. Qis not, in itself, sufficient to establish association. A person's association must have some negative bearing on their character. Under the old Direction, a person could fail the character test if they had a simple association with a person, group or organisation involved in criminal conduct. This is no longer consistent with Australian caselaw established by the courts. The new Direction provides for a fairer and more reasonable response to character issues, particularly where the person has significant ties to the Australian community and presents a lower level of risk. CANBERRA 00000588 002.4 OF 002 Decision makers using the section 501 visa refusal and cancellation power have been guided to date by a Ministerial Direction, issued in 2001 by former Minister Ruddock, which sets out the factors to be considered when making these decisions. The old Direction did not give sufficient emphasis to crimes of violence. It also included consideration of the 'expectations of the community'. This raised the potential for the visa refusal and cancellation power to be seen as a vehicle for arbitrary vengeance or further punishment, rather than as a mechanism to protect the community or individuals from unacceptable risks. The old Direction did not give sufficient weight to Australia's international obligations, or to people who have spent a significant period of their life in Australia. The new Direction came into effect on 15 June 2009 and will be used for all section 501 character decisions made on and from that date by the Department and the Administrative Appeals Tribunal. It is binding on those decision-makers. The New Direction will not be applied retrospectively to cases which have been decided in the past using the previous Ministerial Direction. There will not be a review of these earlier decisions by me or the Department. (END TEXT) UNDER THE RADAR ¶5. (SBU) COMMENT: The government has not widely publicized the new approach, possibly because being "soft" on border protection and national security is politically risky. Rather than issuing a public statement, the GOA has restricted dissemination of the changes to internal government channels and human rights organizations, part of Labor's Left constituency. The changes are not surprising. In February 2008, the new Immigration Minister granted Jovicic a permanent visa. Evans stated he is uncomfortable with his power to "play God" and believes Australia's reputation was damaged as a result of the previous government's immigration policies. END COMMENT. ¶6. (U) For additional information concerning character requirements, please see http://www.immi.gov.au/media/fact-sheets/79ch aracter.htm CLUNE